B (6:00)

Let's do it. This is what Roman Mars can learn about con law, an ongoing series of indeterminate length and sporadic release where we look at a nerdy agency, hanging chads and zombie lawsuits and use them to examine our Constitution. Like we never have before. Our music is from Doomtree Records. Our professor and neighbor is Elizabeth Jo, and I'm your fellow student and host, Roman Mars.

A (6:55)

When it comes to reducing carbon emissions, the heaviest industries face the toughest challenges. That's where we come in. ExxonMobil is investing in technology to help American industry lower its emissions, including in our own operations, all while empowering businesses and creating job opportunities. It turns out that fewer emissions can mean a stronger economy. ExxonMobil, let's deliver.

C (7:24)

So, Roman, why don't we set the stage here? So, in Bush versus Gore, you and I are of a certain age, so we remember very well.

B (7:31)

Yeah, yeah.

C (7:32)

So you arguably have an unusual case that isn't going to be repeated again because nobody uses punch card ballots anymore. They died out in 2014, I think, in two counties in Idaho. But in Bush versus Gore, the United States Supreme Court decided that recounting the disputed votes in Florida violated Bush's equal protection rights because there wasn't a uniform standard about how to recount them. And because Florida was running up against a deadline to certify its results under federal law, the court's intervention, all by itself really did end up declaring Bush President of the United States. There was no more time for a recount of any sort, and Gore conceded the election the very next day. But in the 24 years since, and especially since the 2020 election, lawsuits are now a regular part of presidential elections. After Trump lost to Biden, Trump and his allies filed dozens of lawsuits trying to overturn the results of the election. None of them succeeded. But that hasn't stopped Trump, his allies, or the Republican Party from trying to use the courts to their own advantage.

B (8:39)

So what kind of lawsuits have there been so far?

C (8:41)

Well, since 2020, there have been all kinds of lawsuits, mostly filed by Republicans, and they generally fall into three categories. Who's allowed to vote, how are people allowed to vote, and which votes count. And I think you can kind of guess the claims that Republicans are making.

B (9:01)

Y that there are people who are not allowed to vote, that are voting, that they are given too many opportunities to vote. I'm trying to think of the third category. Yeah. But those are the major ones I can think of.

C (9:15)

Yeah, pretty good guess. So why don't we talk about some examples, and we can start with who can vote. So in these kinds of cases, Republicans are actually trying to shrink the electorate, make it harder for larger numbers of people to vote. And one group that they've targeted recently is overseas voters. These are US Citizens living abroad, like members of the US Military and their spouses. But Congress has already passed a law in 1986 called the Uniformed and Overseas Citizens Absentee Voting Act. And this federal law requires states to allow certain groups of U.S. citizens living overseas to vote absentee in federal elections. Now, Republicans have filed lawsuits in three swing states, North Carolina, Michigan, and Pennsylvania, to try and exclude these overseas ballots, which have been allowed for a very long time. These lawsuits turn on not very convincing arguments that these applicants aren't properly registered state voters. They all pretty much failed. The Michigan lawsuit was dismissed as what the state court judge called an 11th hour attempt to disenfranchise voters. A North Carolina judge also rejected a Republican led lawsuit about the same issue, but that decision is being appealed. On October 29, a federal judge dismissed a similar challenge to overseas voters in Pennsylvania. But these are just some of the many, many lawsuits right now trying to convince just one court to try and kick some group of voters off the rolls. Let's talk about the other type of election challenge. How can people vote? Do you remember the biggest practical problem for voters in the 2020 election in.

B (11:00)

The middle of a pandemic, was that people couldn't gather because there was a pandemic.

C (11:05)

Right. So that's a really important question. How do you allow people to vote when they're afraid of getting near one another? They don't want to go anywhere in person. So you make it easier to vote in ways other than showing up in person on election day. And that includes early voting, which allows spreading out of people and also voting by mail. And in 2020, 43% of American voters cast an absentee ballot in the presidential election. It was a huge, unprecedented number. But here's the thing. The people who generally don't want to vote in person tend to vote Democratic. And so you can probably guess who is bringing the claims about absentee balloting. Republicans.

B (11:46)

Republicans.

C (11:47)

Yeah. Yep. So the direction of these lawsuits is pretty predictable. Republicans want to make it more difficult to vote by mail. And Democratic responses have been arguments to make voting more accessible by mail or through early voting. And so in 2022, a Conservative majority on the Wisconsin State Supreme Court ruled that dropboxes weren't allowed under state law. Dropping your ballot in a Dropbox was a very popular option for Wisconsin voters during the pandemic, but they put that to a stop. But in 2023, the composition of the Wisconsin State Supreme Court flipped to a Democratic majority and they looked at the issue again. And in July of this year, the court decided that ballot drop boxes were in fact legal just in time for the 2024 election. So again, this is a kind of seems like a not a very big deal, but it has enormous implications for how and whether people can vote. And a lot of this tends to turn on sort of partisan lines. And again, this is just one example. There are many, many other kinds of lawsuits trying to convince just one court to agree that expanded access to voting isn't legal.

B (12:57)

But if all these lawsuits fail, mostly fail. In fact, you haven't mentioned one that has actually succeeded for a significant amount of time. Why do they keep bringing the lawsuits?

C (13:08)

Well, that's a really interesting question. One idea that's been floated is that these are so called zombie lawsuits because, yes, they are frivolous. They don't seem to be winning legal arguments. They don't seem to have a very good chance of winning, but maybe they might be placeholders. And one legal reason to think of it that way is because of a legal doctrine called latches. And the doctrine of latches simply means that sometimes you can't get relief from a court because you filed your case so late. It's not fair to the other party. The doctrine of latches can be used to dismiss a case. You've come to court too late. And that can apply in election law too. And in fact, in the 2020 election, many lawsuits were dismissed based on this doctrine of latches. And so the idea, or maybe the twisted logic behind this is that if you have a claim that even if it's not a very good claim, you still bring it to court because the case is still floating around before election day. And then after election day, you can kind of use that case to continue to say, well, see, there is fraud or there is something illegitimate. Thus the zombie lawsuit rising from the de like, hey, we have reserved the right to raise these doubts about these voters and we still have this lawsuit that's alive. So still bonkers claims in many of these cases. But bonkers has not been a reason not to file these kinds of cases before. And it is a legal strategy thinking that, well, maybe we can make claims in sort of the whirl and confusion of what might happen after election day.

B (14:46)

So let me make sure I understand this fully. Is there strategy here based on the idea of like, well, will raise this frivolous lawsuit, It'll be struck down because of latches. I don't know quite how to use that term, but it'll be struck down because it is too close to the vote to be considered, but because it isn't Struck down on the actual merits of the case itself, it's still kind of slightly alive and therefore can be resurrected. Is that how I said that?

C (15:16)

Well, I mean, maybe a better way to think about it is that to have a lawsuit, even if you have a really terrible lawsuit, it's up to the other party to say, hey, court, dismiss this case because it's frivolous or for whatever reason. And if they don't do that in a timely way or right in time before the election, the case is still alive. You see what I mean? Like, it depends on the other party doing something about it. And there are so many of these cases, dozens of these cases, some of them are not going to be decided upon before election day at all. And so the idea is now, post election, you say, hey, we do have evidence that something really sinister is afoot, and therefore we're going to add that to the case as well. So, you know, you do this enough, again, you just convince one or two courts that something fishy is going on, and that's how you have this zombie lawsuit. Or that's, in theory, how it's supposed to work.

B (16:05)

Okay, that's devious.

C (16:07)

All right. It is devious. Then there's another type of lawsuit which is trying to exclude some votes from being counted. In other words, which votes count? And a good example comes from the very important swing state of Pennsylvania, which Biden won in 2020 by just over 80,000 votes. Now, in Pennsylvania, if you vote by mail, you receive a ballot, and then you get two envelopes, you vote, then you put your ballot in what's called a secrecy envelope, and then you put that envelope inside of another envelope called the declaration envelope that you sign and date. But let's say you forget to do that and you forget to use the secrecy envelope. If the machine that sorts ballots sees that your ballot is naked, that is, it's missing its inner envelope, then you're told that your ballot's not quite right. But you can cast a provisional ballot in person on election day. Well, two Pennsylvania primary voters who had naked ballots did not have their provisional ballots counted and then sued, and the Pennsylvania State Supreme Court agreed. Provisional ballots in this kind of situation should be counted. It's possible that this kind of situation affects thousands of voters in Pennsylvania. And remember, mail in voters tend to be Democratic voters. So this lawsuit was decided in favor of having these provisional ballots counted. But on October 28, with the election just a week away, Republicans have asked the United States Supreme Court to review the case. They argue that the state Supreme Court's decision has interfered with the state legislature's power to write election laws in Pennsylvania. They're just trying to say, overturn this. Don't have these provisional ballots counted. That's just counting. Because, remember, once votes are tallied, they have to be certified. That means that there's another type of lawsuit here about which votes would be counted. And Trump might try to stop the certification of some votes coming from critical counties and swing states. Now, certifying votes takes place at the local and state level after every vote has been tallied and before 2020. Of course, nobody ever heard about this. Right. It was an invisible, non controversial part of the process. Nobody really cared about it. But since the 2020 election, Republicans have started to argue that maybe state and local officials can refuse to certify results. They're not supposed to do that, but they might anyway. And then a local official's refusal to certify votes, maybe they claim, hey, there's some irregularity here, would probably also trigger lawsuits that would try to force certification. And Republicans might try to bring lawsuits about this. Bring challenges also to Congress's final certification of the Electoral college vote on January 6, 2025. But these certification challenges run into the Electoral Count Reform Act.

B (19:02)

Okay, please enlighten me as to what that says.

C (19:06)

Okay, so remember that in the 2020 election, Trump and his allies tried a number of crazy theories to try and over Biden's legitimate victory. And a big part of Trump's plan was to rely on the vague and ambiguous Electoral Count act of 1887. That's right. We've been using an act sitting around since 1887. But after January 6th and what we found out about the crazy legal theories Trump tried to rely on to overturn the election, Congress responded. And what's pretty amazing is that the Electoral Count Reform act of 2022 is a bipartisan attempt to try and close some of these loopholes and questions in the act.

B (19:47)

Okay, so what does the new act do?

C (19:48)

The original 1887 act allowed states to appoint electors if the state had what the law called a failed election. And so the intention behind this was like, well, if you have a state that experiences like a natural disaster, then the state can say, we had a failed election. Sorry.

B (20:05)

Yeah.

C (20:06)

But in 2020, Trump and his allies tried to argue that a state legislature, a Republican led one, had the power just to say, well, we also have a failed election because we don't like the results because the law was pretty vague about this, and then just choose Republican electors no matter how the voters in that state voted. So the new law gets rid of that ambiguity. The new law says that the only time a state can modify electoral results is that if there is something that the law calls force majeure. Force majeure is just a fancy French word for saying it catastrophic event. So what Congress really is meaning is like something extraordinary, like a hurricane that would wipe up all of the ballots in the state or something like that. So no longer can Trump rely on that. And then, Roman, do you remember the role that Trump expected Mike Pence to play during the certification of the results?

B (20:56)

Yeah, he was sort of ordering him, or, I don't know, pleading with him to not certify the results and accept new faithless electors. Right, yeah.

C (21:08)

These, like, fake, fake electors. And this idea was like, sure, sure, Vice President Pence, you can go ahead and just intervene in the counting of the votes. Well, the 2022 act makes it clear that the Vice President's role is only ministerial. In other words, the President of the Senate, who is the Vice President of the United States. And of course, that's Harris. This time only plays a ceremonial role. They don't have any real power. It clarifies here what everyone had already assumed, but Trump tried to exploit because the law seems somewhat vague.

B (21:40)

Yeah.

C (21:41)

The new law also raises the bar for members of Congress to object to a slate of electors coming from a state. Now, at the time of the 2020 election, you could just have one member of the House and Senate raise an objection that there's something wrong with this state's results. Now, it has to be one fifth of the members of both the House and the Senate. So it makes it much harder to make bad faith argument that there's something wrong with the results. So Congress can't certify. Then it turns out that you remember from the Bush vs Gore issue, there is a deadline problem. Sometimes that comes up. And so the new law sets a hard deadline by which the states have to get their certified Electoral College results in. The previous law did have a deadline, but didn't require the states to meet it. So under the new law, the states must certify their electoral results by December 11, 2024. But there's one wrinkle that Congress didn't address here.

B (22:37)

Okay.

C (22:38)

The wrinkle is that the act doesn't really tell us what happens if the states miss the deadline.

B (22:43)

Yeah.

C (22:44)

Which probably means there will be lawsuits if any state misses the deadline. Yeah. Because if Congress meets on January 6, 2025, to certify the Electoral College results, What if there's a lingering question because a state missed the deadline? Does anybody get to object? Is that a reason to object? It's not totally clear what happens then.

B (23:05)

I mean, it seems to me that one of the things that could happen if a state doesn't certify by the deadline is the Supreme Court could step in like they did in 2000. How possible is that?

C (23:16)

Well, it depends on what you mean by a repeat. Right. So in the Bush versus Gore opinion, the Supreme Court actually said, this is a one time only ticket. It don't rely on it.

B (23:26)

Oh.

C (23:26)

And at the time it was hard to believe. And in fact, it's not even really true. The case has been cited many, many times, including by the Supreme Court itself. But I think the larger question is, could this particular Supreme Court, the one that exists now, decide to step into the 2024 election? It has a 6 Justice Conservative majority, the same one that decided Dobbs and the Trump immunity case. Right. So it seems more likely that the closer the margin between Harris and Trump is, there's a chance they might step in. Because if Harris were to win, let's say, by a large margin across several states, is it likely that the Supreme Court would review a whole slew of lawsuits all at the same time with different legal claims, and then flip them all in Trump's favor? That seems pretty unlikely. But if the race is really close, that could be a different story. Right, because in the 2000 election, the presidency came down to just one state, Florida. And the initial vote certification showed that Bush had won the state by 537 votes. So if you have that kind of situation, single state, close margin, if that plays out again in 2024, it's certainly going to result in a lawsuit and a lawsuit that will raise legal arguments that mirror what Trump has been claiming all along, falsely. Something's wrong here. There's fraud, there are ineligible voters voting, and it's that sort of situation where there's a potential Harris win, it might turn on a very small number of votes that the conservative majority might step in. And there's a reason why we should be worried because of a case coming from Virginia.

B (25:08)

Okay, tell me about that one.

C (25:10)

So In August, just 90 days before the election, the Republican governor of Virginia signed an order removing what the state said were suspected non citizens from the state's voter rolls. So there's a lot of problems with this order. I mean, it's clear, of course, that non citizens can't vote, but the reality is that this problem, non citizen voting, it Hardly ever happens. It's not a real problem. The other big issue is that voter purges like this aren't actually allowed under federal law. The National Voter Registration act of 1993 doesn't allow states to purge their voter rolls within 90 days of a federal election. And you can understand why, because purges like this can remove people accidentally who are actually eligible to vote, but maybe they don't have enough time to get their mistake fixed. So two nonprofit groups sued the state of Virginia over this voter purge. And it turns out that about 1600 people have had their voter registrations canceled because of the governor's order. Now, Virginia relied on DMV information to determine citizenship. But here's the problem. Everybody knows that those kinds of records can be wrong or they can be out of date. If you were an immigrant, a recent immigrant, but then you became a naturalized US Citizen, and you just haven't had time to update that information. So both the federal trial court and the federal appeals court in this case halted Virginia's voter purge. Both courts said it was likely that the state violated federal law and in fact, that some of the purge voters were actually eligible voters. Virginia appealed on October 30th. That's yesterday. Less than a week before Election Day, the United States Supreme Court, over the objection of the three liberal justices, issued an order allowing Virginia to continue to purge its voter rolls. This is an order. It's not an opinion. So we actually don't even know why the court decided this. There's no way of knowing why the court thinks it's okay to allow a state to remove registered voters, some of whom are eligible voters, just days before Election Day. And when Congress clearly said that states can't do this. And so you might say, well, it's only Virginia, right? And Virginia has consistently voted Democratic in the past few presidential elections. So maybe this particular instance may not affect the results of the election. But the reason why this is so troubling is because it shows us the Supreme Court's attitude. Right. The court is willing to be pretty cavalier about stepping into elections and allowing a voter purge that doesn't seem to be allowed by federal law at all. And that's not exactly confidence inspiring for the days and weeks ahead if we're not sure who is the winner right after Election Day. Yeah.

B (28:01)

Yeah. Oh, my God. And we don't even know why. We don't even know why. That's what's.

C (28:06)

We don't know why. That's right.

B (28:08)

That's crazy to me.

C (28:09)

So we don't know who's going to win the election? We may know right away or we may have to wait for a while. But I think what is absolutely certain is that if Harris is declared the winner, Trump is going to unleash a flood of lawsuits. And I think the thing to remember is that these kinds of lawsuits brought by Trump that he brought in the last election, and then you will certainly bring in this election if it seems that he's a loser, they're both kind of substance and signal. Right. Because they raise legal, substantive arguments, most of which are probably going to be losers. Right. They're not going to be winning claims. But the lawsuits themselves also serve as a signal. They serve as a signal to a very large portion of the public who supports Trump. And they'll see these lawsuits, their very existence, as a kind of proof that something has gone wrong, that some fictional fraud has taken place. And remember, it's those kind of bogus legal claims. That's part of the reason that Trump supporters questioned Biden's victory in 2020. And that also led to the violence on January 6th. And I think that's the most ominous part of the election. Lawsuits that are likely to be coming. Yeah.

A (29:27)

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B (29:56)

Okay. So let's just hope for a decisive victory.

C (30:01)

That's right.

B (30:02)

So that it doesn't come to that. But it'll still happen. Like, even if it's, you know, quite decisive, it'll still happen. But it's really something to think about. I mean, also just like the attitude of that Virginia case, the idea that it's this sort of made up idea that there's rampant fraud that's had no evidence for people searching like crazy for very, very long is more potent and powerful of an argument than the idea of disenfranchising people, which seems so fundamental to being an American citizen. That just seems like that just. I can't. That doesn't make sense to me how anyone could think that.

C (30:40)

Yeah. And the fact that the court decides that the best way to do this is to just have an order with no explanation. Yeah. It sort of reminds you that, well, this is a court that thinks it's the Supreme Court because it's supreme and that's why it's there.

B (30:55)

It seems like they're not really all that concerned. Like there seemed to be this hand wringing for a while, the legitimacy of the court being an issue like making sure that that was presented to the public in a good way and so that they could retain that Marbury vs Madison claim, that they are the last arbiter because they are the last arbiter and that that power is given to them because we just have agreed to it. They seem to be really nervous about that for a while, but they don't seem nervous about that anymore. It just doesn't seem like that's a huge concern.

C (31:29)

I think that's right. I mean, what you see here is a court that is just willing to do what it wants, when it wants, without explanation and really without sense that the legitimacy should be at the forefront of how they make these decisions. I mean, maybe it is, but no evidence has been forthcoming.

B (31:45)

No, no. With overturning things and the sort of abandonment of starry decisis. I mean, all this stuff is built upon those principles over time. And now it's just sort of. I mean, maybe they just think that they can just rest upon a kind of historical interpretation of the court and its power. That people will never think that their opinions are illegitimate. That because they've just been thought of this way for so long, but they used to have some kind of notion that you can't be capricious about your decision making and you have to give reasoned arguments and you have to give an argument if you're going to do something that is significant and substantial and you just don't feel that anymore from the Supreme Court decisions.

C (32:28)

Yep. It makes it especially hard to think about how the court can say anything with finality in an election if they decide to step in right after in a way that is not decisive. Right.

B (32:39)

Yeah.

C (32:40)

So Raman, you want to go back to NIST for a moment?

B (32:42)

Yeah, sure. Let's go back to NIST.

C (32:43)

All right. So in 1976, NIST sponsored a conference on the future of voting technology. One prediction presented at the conference imagined that within 10 years, that would be 1986. A new voter could register to vote by calling a telephone number and reporting a few vital statistics. When the voter arrived to the polls, they would be verified by voice print. A computer would register the voters choices and that would ensure that invalid votes would be impossible. The results in each polling booth would be transmitted instantly by laser beam to a central headquarters where a running tally would be made public after the polls had closed. One skeptical voice at the conference, Roy Saltman, he told the attendees that we have a serious problem of public confidence in computers and a serious problem of public confidence in public officials around election time, they tend to coalesce. Saltman, who would go on to warn against hanging chads in 1988, liked to say an election is like the launch of a space rocket. It must work the first time.

B (33:55)

Wow. I would like that voice print thing and lasers. That'd be great.

C (33:58)

That would be awesome.

B (34:02)

I would love to know instantly. I think that's the thing that just count everything as much as possible ahead of time. So you can just turn on these laws in the states that don't allow you to open up the envelopes until the day of. So it makes everything so much slower. Those drive me crazy. I just wish they are nuts. I just wish they could just happen so quickly. Well, I wish us all a happy and definitive election. And yeah, and we'll find out what's the future tenor of this show after, you know, if not in November, maybe in December and then if not that, then maybe in January.

C (34:41)

Definitely by January. Thanks, Roman.

B (34:44)

Thank you.

C (34:45)

See you after the election.

B (34:48)

This show is produced by Elizabeth Jo, Isabel angel and me, Roman Mars. It's mixed by Hazik Ben Ahmad Farid. Our executive producer is Kathy too. You can find us online@learnconlaw.com all the music and what Roman Mars can learn about Con Law is provided by Doomtree Records, the Midwest hip hop collective. Find out more about Doomtree Records, get merch and learn about who's on tour@doomtree.net we are part of the Stitcher and SiriusXM podcast family.

A (35:41)

When it comes to reducing carbon emissions, the heaviest industries face the toughest challenges. That's where we come in. ExxonMobil is investing in technology to help American industry lower its emissions, including in our own operations. All while empowering businesses and creating job opportunities. It turns out that fewer emissions can mean a stronger economy. ExxonMobil, let's deliver.